Editor's note, 17 September 2021: This article was updated with additional comment.
An NHS trust has won a Court of Appeal fight to overturn a landmark ruling over the use of puberty-blocking drugs for children with gender dysphoria.
Last year, the High Court ruled it was "highly unlikely" that a child aged 13 or under would be able to consent to the hormone-blocking treatment and that it was "very doubtful" a child of 14 or 15 would understand the long-term consequences.
The Tavistock and Portman NHS Foundation Trust, which runs the UK's only gender identity development service for children (GIDS), brought an appeal against the ruling in June.
In a judgment on Friday, the Court of Appeal said it was inappropriate for the High Court to give the guidance, finding it is for doctors to exercise their judgment about whether their patients can properly consent.
In their ruling, the Lord Chief Justice Lord Burnett, with Sir Geoffrey Vos and Lady Justice King, said: "The court was not in a position to generalise about the capability of persons of different ages to understand what is necessary for them to be competent to consent to the administration of puberty blockers."
They added: "It placed patients, parents, and clinicians in a very difficult position."
The original case was brought by Keira Bell – a 24-year-old woman who began taking puberty blockers when she was 16 before later "detransitioning" – and the mother of a teenager who is on the waiting list for treatment.
During the 2-day appeal earlier this year, the Tavistock's lawyers argued the ruling was "inconsistent" with a long-standing concept that young people may be able to consent to their own medical treatment, following an appeal over access to the contraceptive pill for under 16s in the 1980s.
However, Jeremy Hyam QC, representing Ms Bell and Mrs A, argued policies and procedures at the Tavistock "as a whole failed to ensure, or were insufficient to ensure, proper consent was being given by children who commenced on puberty blockers".
Human rights group Liberty, which intervened in the appeal, said the High Court had imposed a serious restriction on the rights of transgender children and young people to "essential treatment".
The Court of Appeal heard the Tavistock does not provide puberty blockers itself but instead makes referrals to two other NHS trusts – University College London Hospitals and Leeds Teaching Hospitals – who then prescribe the treatments.
John McKendrick QC, for the other trusts, told the court the median age for consenting to puberty blockers is 14.6 for UCL and 15.9 for Leeds.
Doctors, Not Judges to Make Decisions
A Tavistock and Portman spokesperson said: "We welcome the Court of Appeal’s judgment on behalf of the young people who require the GIDS service and our dedicated staff. The judgment upholds established legal principles which respect the ability of our clinicians to engage actively and thoughtfully with our patients in decisions about their care and futures. It affirms that it is for doctors, not judges, to decide on the capacity of under-16s to consent to medical treatment.
"We recognise the work we do is complex and, working with our partners, we are committed to continue to improve the quality of care and decision making for our patients and to strengthen the evidence base in this developing area of care."
Following the ruling, Keira Bell, said: "I am obviously disappointed with the ruling of the court today and especially that it did not grapple with the significant risk of harm that children are exposed to by being given powerful experimental drugs.
"I am surprised and disappointed that the court was not concerned that children as young as 10 have been put on a pathway to sterilisation.
"It has shone a light into the dark corners of a medical scandal that is harming children and harmed me,” she continued.
Ms Bell also said: "A global conversation has begun and has been shaped by this case. There is more to be done. It is a fantasy and deeply concerning that any doctor could believe a 10-year-old could consent to the loss of their fertility."
She added that she believed the medical service had become "politicised", and she will be seeking permission to appeal to the Supreme Court.
The ruling was welcomed by the Endocrine Society. "We are pleased the court agreed that the rules governing consent must be applied the same way to transgender and gender diverse adolescents as they are to other adolescents who are making decisions about medical care,” said spokesperson Dr Sabine Hannema.
"We hope this ruling will set a precedent protecting access to care for transgender teenagers in the United Kingdom and in other countries."
An NHS spokesperson said: "The NHS commissioned Dr Hilary Cass to review gender identity services prior to the original High Court ruling to ensure the best model of safe and effective care is delivered – this will set out wide-ranging recommendations, including on the use of puberty blockers and the many contested clinical issues identified by the court.
"An independent multi-professional review group will continue to confirm whether clinical decision making has followed a robust consent process now that the endocrine pathway has been reopened by the Tavistock."
This article contains information from PA Media.
Images: PA Media